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Clemens v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 19, 2018

John J Clemens, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          ERIC J. MARKOVICH JUDGE

         Plaintiff John J. Clemens (“Clemens”) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Clemens raises two issues on appeal arguing that the Administrative Law Judge (“ALJ”) erred and abused his discretion by: 1) failing to find any severe impairments and 2) applying the wrong legal standard to assess Clemens's subjective symptom testimony. (Doc. 19).

         Before the Court are Clemens's Opening Brief, Defendant's Response, and Clemens's Reply. (Docs. 19, 20 & 21). The United States Magistrate Judge has received the written consent of both parties and presides over this case pursuant to 28 U.S.C. § 636(c) and Rule 73, Federal Rules of Civil Procedure. For the reasons stated below, the Court finds that this matter should be remanded for further administrative proceedings.

         I. Procedural History

         Clemens filed an application for Disability Insurance Benefits (“DIB”) on August 6, 2014. (Administrative Record (“AR”) 55). Clemens alleged disability beginning on March 10, 2014 based on fibromyalgia, scoliosis, and joint and muscle pain. Id. Clemens's application was denied upon initial review (AR 54, 63) and on reconsideration (AR 65, 76). A hearing was held on March 30, 2016 (AR 34), after which ALJ Peter J. Baum found, at Step Two, that Clemens was not disabled because he did not have an impairment or combination of impairments that significantly limited his ability to perform basic work activities. (AR 23, 29). On January 9, 2017 the Appeals Council denied Clemens's request to review the ALJ's decision. (AR 1).

         Clemens's date last insured (“DLI”) for DIB purposes is December 31, 2018. (AR 55). Thus, in order to be eligible for benefits, Clemens must prove that he was disabled during the time period of his alleged onset date (“AOD”) of March 10, 2014 and his DLI of December 31, 2018.

         II. Factual History

         Clemens was born on May 9, 1974 making him 40 at the AOD of his disability. (AR 55). He has past relevant work at a gas station, as a security guard, and as a waiter. (AR 154).

         Clemens previously filed applications for DIB on August 11, 2011 and July 3, 2012 based on allegations of spine and shoulder problems, and both times was denied to other work. (AR 56).

         A. Treating Physicians

         On November 14, 2013 Clemens was seen at St. Joseph's ER for evaluation of a lump on his left lower back. (AR 204). Clemens stated the lump had been there for 8-12 years and that he had history of chronic back pain, scoliosis, and right shoulder rotator cuff surgery. He reported no alcohol use and occasional marijuana use. On examination there was no back tenderness; the lump was minimally tender, most consistent with a lipoma, and required no medical intervention. (AR 205).

         On June 11, 2014 Clemens was seen at El Rio for back, knee, and hip pain. (AR 232). Clemens described his back pain as aching and made worse by stair climbing, standing, and walking; a five year history of knee pain occurring occasionally; and aching left hip pain. Clemens was positive for feeling down, depressed, or hopeless, and reported pain 7/10. (AR 233). The assessment was back pain, knee pain, hip pain, and polyarthralgia, and he was referred for x-rays, bloodwork, and PT. (AR 234). X-rays of the left hip, bilateral knees, and thoracic spine were normal. (AR 216-17, 219). X-ray of the lumbar spine showed mild scoliosis and an otherwise radiographically negative lumbar spine evaluation. (AR 218).

         On July 11, 2014 Clemens was seen at El Rio for back and musculoskeletal pain. (AR 228). He reported fluctuating back pain, worse with flexion and jumping, and a three month history of musculoskeletal pain, occurring occasionally and improving. Pain level 6/10. (AR 230). Review of systems was negative and findings on exam were normal. (AR 229-30). The assessment was fibromyalgia, good control with medication, referred for PT; lumbar back pain, abnormal findings on x-ray and controlled with medication; and scoliosis, mild. (AR 231).

         On July 14, 2014 Clemens had a physical therapy evaluation. (AR 214). He reported a history of low back pain, average 7/10 and 10/10 on a bad day, and difficulty sleeping due to pain. Clemens stated his back would lock up on occasion and that bending and lifting made the pain worse, but that otherwise he was in good health. The therapist noted a positive straight leg and altered reflexes and recommended PT twice a week for eight weeks.

         On August 12, 2014 Clemens was seen at El Rio and reported his fibromyalgia occurred occasionally and was stable, neck pain was moderate and had worsened, and back pain was fluctuating, aching, and aggravated by changing positions. (AR 224). On exam, Clemens was positive for feeling down, depressed, or hopeless, and reported his pain was 7/10. (AR 225-26). He received injections in his back but had only a mild response. (AR 226-27). The assessment was invertebral disc disorder with radiculopathy of lumbar region, lumbar strain, scoliosis, cervicalgia, and fibromyalgia, and Clemens was prescribed Gabapentin and referred for imaging. (AR 227).

         On September 4, 2014 Clemens was seen at El Rio for back pain, leg pain, and to have disability paperwork completed. (AR 220). Clemens reported lower back pain aggravated by bending and flexion, and a two week history of aching upper leg pain, with pain 6/10. (AR 222). Review of systems was negative and all findings on exam were normal. (AR 221-22). The assessment was fibromyalgia, lumbar strain, and depression, and the doctor increased Gabapentin and Tramadol for pain and started Sertraline for depression. (AR 223).

         On September 10, 2014 a venous duplex for the right lower extremity was negative. (AR 215).

         On October 2, 2014 Clemens was seen at El Rio with a complaint of insomnia and heartburn and for a medication refill. (AR 211). He reported his joint pain was 8/10. (AR 212).

         On January 19, 2015 Clemens saw Dr. Bhat to establish care and reported hip pain and a dislocated shoulder. (AR 381). Clemens reported occasional marijuana use and no alcohol use, bilateral hip pain, a history of back pain since age 15, history of scoliosis, muscle aches, joint pain, depression, and sleep disturbances, and said his previous doctor at El Rio diagnosed him with fibromyalgia and depression. (AR 382-83). On exam Clemens had normal mood and affect, normal motor strength and tone, normal gait and station, and tenderness to right shoulder. (AR 383). Dr. Bhat assessed depressive disorder, stable, continue Zoloft; chronic pain syndrome, counseled about management and meds; gastroesophageal reflux diseases, stable; insomnia, stable; recurrent shoulder dislocation; and primary fibromyalgia syndrome. (AR 384).

         On February 18, 2015 Clemens saw Dr. Bhat for his annual physical. (AR 375). He reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, depression, and sleep disturbances. (AR 376-77). Dr. Bhat noted he could not prescribe narcotics because of Clemens's marijuana use. (AR 377). On exam Clemens had normal mood and affect, normal motor strength and tone, normal gait, and tenderness right shoulder. (AR 379-80). Dr. Bhat assessed diabetes, new problem; diabetic ketoacidosis; depressive disorder, not well controlled, increase Zoloft; chronic pain syndrome, counseled on medications; gastroesophageal reflux disease, stable; and mixed hyperlipidemia, severe. (AR 380). An electrocardiogram was normal. (AR 363-64).

         On March 4, 2015 Clemens saw Dr. Bhat for a diabetes follow-up. (AR 371). He reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, depression, and sleep disturbance. (AR 373). On exam Clemens had normal mood and affect, normal motor strength and tone, tenderness in right shoulder, and normal gait and station. (AR 374). Dr. Bhat assessed diabetes, fair; diabetic ketoacidosis; depressive disorder, better, continue Zoloft; chronic pain syndrome, counseled about medication and optimizing antidepressants and non-narcotic pain relievers, increased medications; gastroesophageal reflux disease, stable; and mixed hyperlipidemia, severe. A pulmonary function report was normal. (AR 362).

         On March 18, 2015 Clemens saw Dr. Bhat for a follow-up and to discuss service animals and inhalers. (AR 368). Clemens reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, depression, and sleep disturbances. (AR 369-70). Dr. Bhat recommended an inhaler and smoking cessation, and opined that a service animal was not necessary for Clemens's diabetes or fibromyalgia. (AR 369). On exam Clemens had normal mood and affect, normal motor strength and tone, and normal gait. (AR 370-71). Dr. Bhat assessed diabetes, stable; hyperlipidemia, severe, begin statin; depressive disorder, stable, continue Zoloft; chronic pain syndrome, defer to specialist; and gastroesophageal reflux disease, stable. (AR 371).

         On April 29, 2015 Clemens saw Dr. Bhat for a follow-up and reported random twitches in his arms and legs. (AR 466). He reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, numbness, depression, and sleep disturbances. (AR 468). On exam Clemens had normal mood and affect, normal tone and motor strength, normal gait, and no tremor. (AR 469). Dr. Bhat assessed restless legs, new problem; diabetes, at goal; mixed hyperlipidemia, at goal, depressive disorder, stable; gastroesophageal reflux disease, stable; chronic pain syndrome, defer to specialist; and recommended Clemens continue his medications. (AR 470).

         On June 1, 2015 Clemens saw Dr. Bhat for a follow-up. (AR 463). He reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, numbness, depression, and sleep disturbances. (AR 464-65). On exam Clemens had normal mood and affect, normal tone and motor strength, and normal gait. (AR 465). Dr. Bhat assessed restless legs, uncontrolled; diabetes, at goal; mixed hyperlipidemia, at goal, depressive disorder, stable; gastroesophageal reflux disease, stable; chronic pain syndrome, defer to specialist; and recommended Clemens continue his medications. (AR 466).

         On June 13, 2015 Clemens was seen at the Tucson Medical Center ER for amphetamine intoxication after taking one of his wife's pills so that he could stay up with her studying. (AR 258-317). He reported using marijuana once every few weeks when his pain was really bad and his medications were not working. (AR 290).

         On June 14, 2015 Clemens had an x-ray of his right shoulder. (AR 352). The impression was “sequelae from chronic shoulder dislocation but no active dislocation at this time, ” “Bankart lesion is suspected in the inferior glenoid region, also present on a previous study from 01/09/2015, ” and “some shoulder laxity as well with some widening of the subacromial spaco.” On June 16, 2015 Clemens saw Dr. Bhat after being discharged from TMC. (AR 460). He reported no alcohol use and occasional marijuana use, muscle aches, joint pain, back pain, numbness, depression, and sleep disturbances. (AR 461-62). On exam Clemens had normal mood and affect, normal tone and motor strength, normal movement of all extremities, normal gait, and reflexes 2 bilaterally. (AR 462). Dr. Bhat assessed sleep apnea and referred Clemens for a sleep study. (AR 463).

         On July 20, 2015 Clemens saw Dr. Bhat for a follow-up. (AR 456). He reported no alcohol use and occasional marijuana use, sleep apnea, muscle aches, joint pain, back pain, numbness, depression, restless legs, and sleep disturbances. (AR 458). On exam Clemens had normal mood and affect, normal motor strength and tone, normal gait, and reflexes 2 bilaterally. (AR 459). Dr. Bhat assessed sleep apnea, uncontrolled, await sleep study; restless legs, uncontrolled, continue medication; diabetes, at goal, continue medication; mixed hyperlipidemia, at goal, continue medication; depressive disorder, stable, continue Zoloft; gastroesophageal reflux disease, stable; and chronic pain syndrome, defer to specialist. (AR 459).

         On August 10, 2015 Clemens had a polysomnogram. (AR 439). The impression was moderate severe obstructive apnea and a CPAP was recommended; also noted that Clemens would have very little apnea if he slept on his side. (AR 440).

         On August 31, 2015 Clemens saw Dr. Bhat for a follow-up. (AR 453). Clemens complained of a lot of pain and asked for a pain referral; he reported sleep apnea, muscle aches, joint pain, back pain, depression, and sleep disturbances. (AR 454). On exam his mood and affect were normal, normal motor strength and tone, normal gait, and reflexes 2 bilaterally throughout. (AR 456). Dr. Bhat assessed fibromyalgia, referred to pain management specialist; sleep apnea, awaiting CPAP machine; restless legs, uncontrolled; diabetes, at goal, continue medication; mixed hyperlipidemia, at goal, continue medication; depressive disorder, stable, continue Zoloft; and gastroesophageal reflux disease, stable. (AR 456).

         A September 22, 2015 neurology clinic note states that Clemens's examination and imaging ...


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